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Anti Corruption
- 1. The World’s Policeman Has a Posse GLOBAL REGULATION OF INTERNATIONAL TRANSACTIONS MITIGATING YOUR RISK AND REDUCING YOUR EXPOSURE Maxwell Carr-Howard Husch Blackwell Sanders LLP Phil Gallas Husch Blackwell Sanders LLP Bruce Kilpatrick Addleshaw Goddard LLP Elizabeth Robertson Addleshaw Goddard LLP Christina Weis Husch Blackwell Sanders LLP Moderated by Michael Ray and Linda Tiller Husch Blackwell Sanders LLP © Husch Blackwell Sanders LLP and Addleshaw Goddard LLP
- 2. The World’s Policeman Has a Posse GLOBAL REGULATION OF INTERNATIONAL TRANSACTIONS MITIGATING YOUR RISK AND REDUCING YOUR EXPOSURE Just the Facts, Ma’am: a new approach to understanding the international enforcement regime 1:40 to 3:00 Anti-Corruption Laws and Export Controls 3:00 to 3:15 Break 3:15 to 4:15 Anti-Dumping and Anti-Trust Laws 4:15 to 4:30 Questions Join us for a reception following the presentation at 4:30 pm.
- 4. The Attorney General and 94 US Attorneys (prosecution decision makers) FBI, DEA, ATF TSA, ICE, Customs, Commerce, BIS Import, Export, and Foreign Nationals Congressional Investigations Munitions OFAC Embargoed Countries and Prohibited Persons Anti-Corruption FCPA Antitrust Enforcement (criminal matters referred to DOJ) CFIUS National Security and Foreign Investments
- 5. UK and EU Antitrust Enforcement (including criminal matters) Export Controls Organization Enforcement of Export Controls Anti-Corruption Antitrust (criminal matters) Financial Services Regulator (Enforcement) European Commission (Antitrust enforcement and anti-dumping legislation) The next president?
- 36. Break
- 66. Applying for Immunity Yes Rarely Leniency up to 50% Type C Yes Yes Yes Rarely Immunity (100%) Leniency (up to 50%) Type B Yes Yes 100% Type A CDO exemption No Action Letters Fines
- 70. Questions about the Global Posse? Maxwell Carr-Howard US Enforcement of Anti-Corruption and Anti-Trust Laws Phil Gallas US Anti-Dumping Laws and Trade Remedies Bruce Kilpatrick European Anti-Trust and Anti-Dumping Laws Elizabeth Robertson European Anti-Corruption Laws Christina Weis US Export Controls Moderated by Michael Ray and Linda Tiller
Hinweis der Redaktion
- Depends on nature of goods Destination of proposed export Ultimate end use UK has well developed export control system Nature of goods: UK Strategic Export Control Lists not only military BUT ALSO dual use items (civil or military purposes) - covers some encryption technology products and software. Depends on complexity. Carve out for personal use; availability in mass-market outlets and also “read only” material - can seek guidance If covered by Lists: need licence. Open General EL does not cover Sudan but does cover China. Approx 35 licences which cover wide range of circumstances. if not, need to apply for individual licence: either standard individual licence or open individual export licence. Record keeping
- Depends on nature of goods Destination of proposed export Ultimate end use UK has well developed export control system Nature of goods: UK Strategic Export Control Lists not only military BUT ALSO dual use items (civil or military purposes) - covers some encryption technology products and software. Depends on complexity. Carve out for personal use; availability in mass-market outlets and also “read only” material - can seek guidance If covered by Lists: need licence. Open General EL does not cover Sudan but does cover China. Approx 35 licences which cover wide range of circumstances. if not, need to apply for individual licence: either standard individual licence or open individual export licence. Record keeping
- Depends on nature of goods Destination of proposed export Ultimate end use UK has well developed export control system Nature of goods: UK Strategic Export Control Lists not only military BUT ALSO dual use items (civil or military purposes) - covers some encryption technology products and software. Depends on complexity. Carve out for personal use; availability in mass-market outlets and also “read only” material - can seek guidance If covered by Lists: need licence. Open General EL does not cover Sudan but does cover China. Approx 35 licences which cover wide range of circumstances. if not, need to apply for individual licence: either standard individual licence or open individual export licence. Record keeping
- Depends on nature of goods Destination of proposed export Ultimate end use UK has well developed export control system Nature of goods: UK Strategic Export Control Lists not only military BUT ALSO dual use items (civil or military purposes) - covers some encryption technology products and software. Depends on complexity. Carve out for personal use; availability in mass-market outlets and also “read only” material - can seek guidance If covered by Lists: need licence. Open General EL does not cover Sudan but does cover China. Approx 35 licences which cover wide range of circumstances. if not, need to apply for individual licence: either standard individual licence or open individual export licence. Record keeping
- The activities must relate to the supply or production of a product or service in the UK . The cartel offence only applies to horizontal agreements (agreements between undertakings operating on the same level of the supply or production chain ). In addition, arrangements fixing prices, limiting supplies or limiting production must be reciprocal in that at least two undertakings must each be bound to fix prices, limit supplies or limit production. Dishonesty It seems likely that evidence of the covert nature of some cartel activities will be of significance in proving dishonesty. Norris – see Maya article In its initial draft guidance on "no-action" letters to individuals; the OFT gave some examples of behaviour which might fall within the cartel offence: (1) managers or directors who became aware of the existence of a cartel and then took steps to end it and to report its existence to the OFT cannot be seen to have acted dishonestly. (2) An employee who becomes aware of the existence of the cartel and, although not involved in its operation, does nothing to end it has not committed the cartel offence. (3) However, individuals who are knowingly engaged in the cartel activity may have technically committed the offence, but where their involvement is peripheral or they have shown themselves willing to come forward at an early stage, the exercise of prosecutorial discretion would mean that they would be unlikely to be prosecuted Standard of proof Burden of proof in a criminal case (must be proved beyond all reasonable doubt) is greater than in a civil case where the “balance of probabilities” test is used Various procedural safeguards imposed by the Police and Criminal Evidence Act 1984 which must be observed, for example the giving of cautions and the conduct of interviews Information obtained under an EA02 investigation may be used for a CA98 investigation but not necessarily vice versa
- Creation of cartel offence brings powers of criminal investigation, and the need to apply criminal procedure to substantive competition law. Hence, if OFT suspects that a case may involve cartel activities and there may therefore be a possibility of a criminal prosecution, it will use its EA02 powers of investigation S193 : OFT may also give notice in writing requiring a person under investigation or any other person who it believes had relevant information to answer questions or otherwise provide information in relation to any matter under investigation. S194 : OFT has powers to enter premises under warrant and to seize documents which are very similar to the powers under section 29 of CA98 S 199 : Chairman of the OFT can authorise such action. The surveillance powers that may be employed include planting surveillance equipment at business premises, residential premises (including hotels) or vehicles. The OFT can grant authorised officers access to directed surveillance (essentially monitoring the movement of people and vehicles) and covert human intelligence sources (essentially the use of informants) under sections 28 and 29 RIPA. In addition, it can grant authorised officers access to communication data (primarily postal and telephone records) under section 22 RIPA The first step in the process is for an Officer of the OFT to request, in writing, an authorisation for intrusive surveillance from the Chairman of the OFT. Under section 32(2) of RIPA, the Chairman will not authorise intrusive surveillance unless he believes: (a) that the authorisation is necessary for the purpose of preventing or detecting a serious offence under section 188 of the Enterprise Act (that is to say, a cartel offence); and (b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out. The Chairman will also take into account, in deciding whether an authorisation is necessary and proportionate, whether the information which it is thought necessary to obtain by means of the intrusive surveillance could reasonably be obtained by other less intrusive means. Except in urgent cases, an authorisation granted by the Chairman for intrusive surveillance will not take effect until it has been approved by the Surveillance Commissioner. However, when the authorisation is urgent it can take effect from the time it is granted by the Chairman provided notice is given to the Surveillance Commissioner.
- Creation of cartel offence brings powers of criminal investigation, and the need to apply criminal procedure to substantive competition law. Hence, if OFT suspects that a case may involve cartel activities and there may therefore be a possibility of a criminal prosecution, it will use its EA02 powers of investigation S193 : OFT may also give notice in writing requiring a person under investigation or any other person who it believes had relevant information to answer questions or otherwise provide information in relation to any matter under investigation. S194 : OFT has powers to enter premises under warrant and to seize documents which are very similar to the powers under section 29 of CA98 S 199 : Chairman of the OFT can authorise such action. The surveillance powers that may be employed include planting surveillance equipment at business premises, residential premises (including hotels) or vehicles. The OFT can grant authorised officers access to directed surveillance (essentially monitoring the movement of people and vehicles) and covert human intelligence sources (essentially the use of informants) under sections 28 and 29 RIPA. In addition, it can grant authorised officers access to communication data (primarily postal and telephone records) under section 22 RIPA The first step in the process is for an Officer of the OFT to request, in writing, an authorisation for intrusive surveillance from the Chairman of the OFT. Under section 32(2) of RIPA, the Chairman will not authorise intrusive surveillance unless he believes: (a) that the authorisation is necessary for the purpose of preventing or detecting a serious offence under section 188 of the Enterprise Act (that is to say, a cartel offence); and (b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out. The Chairman will also take into account, in deciding whether an authorisation is necessary and proportionate, whether the information which it is thought necessary to obtain by means of the intrusive surveillance could reasonably be obtained by other less intrusive means. Except in urgent cases, an authorisation granted by the Chairman for intrusive surveillance will not take effect until it has been approved by the Surveillance Commissioner. However, when the authorisation is urgent it can take effect from the time it is granted by the Chairman provided notice is given to the Surveillance Commissioner.
- In May 2007, the OFT had announced that it is carrying out on-site searches as part of a criminal investigation into suspected cartel activity in the market for marine hoses used to transfer oil (the cartel was being investigated by the European Commission under Article 81 and also by the US Department of Justice (DOJ)) (see OFT press release 70/07). Separate but connected investigations First time a cartel case investigated by Commission under civil powers (Art. 81 EC Treaty) and by OFT under its criminal powers (S.188 EA) The DOJ arrested a number of individuals, including three British citizens. On 12 December 2007, the DOJ announced that the three UK nationals had agreed to plead guilty to participating in a conspiracy to rig bids, fix prices and allocate market shares of marine hoses sold in the US in violation of the Sherman Act. As part of the plea arrangement it was agreed that the men would be escorted in custody back to the UK in order to "allow them to co-operate" with the OFT Enterprise Act investigation. The three men were arrested by the Metropolitan Police on their arrival at Heathrow on 18 December 2007. They were interviewed by OFT officials before being charged with criminal cartel offences under the Enterprise Act. (OFT press release 177/07). In June 2008, the three men plead guilty at Southwark Crown Court to dishonestly participating in a cartel to allocate markets and customers, restrict supplies, fix prices and rig bids for the supply of marine hose and ancillary equipment in the UK, contrary to the cartel offence. The charges related to the period between 20 June 2003 (when the cartel offence came into force) and 2 May 2007 (when the cartel ended following the arrests in the US). The men were sentenced to imprisonment (two of them for three years and one for two and half years) and were also disqualified as directors for seven years and five years respectively). The OFT announced these first Enterprise Act charges as being a "highly significant development in both the UK's own competition regime and in international cooperation against cartels". On announcing the sentencing, the OFT stated that "this first criminal prosecution sends a clear message to individuals and companies about the seriousness with which UK law fives cartel behaviour" (OFT press release 72/08). However, as the defendants in these cases pleaded guilty there was no trial. Therefore, these first cases provide no assistance in resolving any of the issues in the construction of the cartel offence discussed in the remainder of this Practice note.
- The offence may be committed even if the agreement is not implemented or the individuals involved do not have authority to act on behalf of their companies. There is no need for the undertakings in relation to which the agreement has been made to implement the agreement. The only exception to this is where the agreement is made outside the UK. In that case the offence will only apply if some steps were taken to actually implement the agreement in the UK. However, this requirement may be satisfied by as little as a phone call or e-mail to a UK subsidiary telling it to act in a certain way, regardless of whether the UK company actually changed its behaviour.